Lounsbury v. Capel , 191 Utah Adv. Rep. 40 ( 1992 )

BENCH, Presiding Judge

(concurring specially):

While I otherwise concur in the court’s opinion, I do not join in the discussion concerning any potential constitutional infirmity of subsection 78-14-5(4)(b) (granting spouses authority to consent). The issue of whether a spouse could be statutorily granted the authority to override his or her spouse’s refusal to consent is purely theoretical because no such authority is granted by the statute at issue.

Subsection 78-14-5(3) expressly states: “Nothing contained in this act shall be construed to prevent any person eighteen years of age or over from refusing to consent to health care for his own person upon personal or religious grounds.” In my view, the foregoing limitation is plain and unambiguous and fully resolves the question of whether Lounsbury’s wife was granted any statutory authority to override his refusal to consent. She was not.

When read in context, subsection 78-14-5(4)(b) does not purport to authorize a spouse to override a patient’s refusal to consent because such an interpretation would be directly contrary to subsection 78-14-5(3). There is, therefore, no plausible unconstitutional interpretation before us to be considered and rejected.

Any discussion of theoretical issues is contrary to our longstanding judicial policy to avoid rendering advisory opinions. See, e.g., Reynolds v. Reynolds, 788 P.2d 1044, 1045 (Utah App.1990). The language regarding the possible constitutional infirmity of subsection 78-14-5(4)(b) is also contrary to our “fundamental rule that this court should avoid addressing constitutional issues unless required to do so.” State v. Anderson, 701 P.2d 1099, 1103 (Utah 1985).

The opinion’s advisory language regarding any imagined constitutional infirmity of subsection 78-14-5(4)(b) is theoretical dicta. I therefore do not concur therein.